Before 1980, the City filled vacancies from a "list of
eligibles" which ranked applicants according to their
performance on a competitive examination.*fn2 The City gave
these exams and drew up a list of eligibles in 1976, 1979 and
1982.*fn3 The first phase of the exam was a "physical agility
test," administered by the "Bureau of Testing Services"
("BOTS"). Those who failed this test were rejected
automatically; those who passed took a written exam. To create
the list of eligibles, the City combined the scores of those
who had passed both tests and ranked the applicants by their
performances on the exam. The total score was the sum of 30%
of the physical test grade and 70% of the written test grade.
Those with a resulting score below 70 did not make the final
list. Finally, when vacancies arose in the Department,
applicants on the list would receive a polygraph test, a
psychological test, a background check and an interview. Those
who passed these tests would be hired according to their rank
on the list of eligibles.

Both the 1976 and 1979 physical agility tests had an adverse
impact on female applicants. In 1976, 293 applicants took the
physical test, of whom 85.32% were men and 14.68% were women.
90.40% of the men passed, while 16.28% of the women passed.
Thus, 226 out of 250 men were eligible for the rest of the
application process, but only 7 out of 43 women so advanced.
The City ultimately hired twenty of these men and none of the
women. In 1979, 317 applicants took the test — 86.75% men and
13.25% women. The City had lowered the passing score from 70 to
60. 98.95% of the men passed, while 73.8% of the women passed.
Thus, only 3 out of 275 men flunked, while 11 out of 42 women
failed. The final list was made up of 114 (89.76%) men and 13
(10.24%) women. The City ultimately hired 14 men and one woman
from this list.

The physical agility test itself contained several events,
such as a stair-climb, 1/4-mile run and an obstacle course.
Applicants would receive an integer score ranging from one
through five for each event, depending on their performance as
compared to a table of "norms." The City and BOTS assert that
the test was scaled to create a passing score of 70, and that
an applicant who scored below 70 could not perform physically
as an officer. The City and BOTS also assert that the norms it
used were based upon the performance on the test of a
representative sample of incumbent police officers. Plaintiffs
dispute both of these contentions. The parties do agree,
however, that BOTS has no empirical evidence to support a
contention that those who received high passing scores would
be better police officers than those who received low passing
scores.

Of those men and women who passed the exams, the men
received a disproportionate number of the higher scores. For
the 1979 test, 28 of the 273 men tested (10.25%) scored 79 or
better, while 1 of 44 women tested (2.27%) did so. One woman
ranked in the top 81 scores. 80 of 273 males (29.30%) scored
better than 74. 7 of 44 women (15.90%) did so.

BOTS established its norms by computing the "mean" and
"standard deviation"*fn4 of actual scores on the events of
the test. For the 1976 and 1979 tests, BOTS tested incumbent
police officers to set these norms. An applicant who scored
within one standard deviation of the mean set by these
incumbents received a "3" for that event; one who scored more
than one standard deviation from the mean received a "4." The
test was thus scaled so that about 16% of incumbent officers
would have received a "2" or less (a failing score for that
event) had they taken the test as applicants. BOTS assumed
that some 16%
of incumbent officers were physically incapable of performing
their jobs.

Another part of the "job analysis" involved observing the
work actually performed by police officers. The only
documented observations BOTS has consist of two reports
written by a graduate student who went on a few "ride-alongs"
with the Markham police department. BOTS and the City lack
additional documentation of observation of work actually
performed by police officers. Moreover, no documentation
describes how the survey and observation were used to create
the tasks used on the physical agility test.

The class representative, Brenda Thomas, applied with the
Department on February 19, 1976. Her application contained a
certificate from her doctor that she was physically capable of
taking a strenuous physical aptitude test. Thomas took the
1976 test and flunked, thereby being rejected from further
consideration. On February 4, 1977, she filed a timely charge
with the Equal Employment Opportunity Commission ("EEOC"). The
EEOC investigated her charge, and three years later, on
February 19, 1980, found "reasonable cause" to believe that
her charge was well founded because the test "has an adverse
impact on the consideration of females for employment" and
"has not been properly validated." The EEOC and the City
entered into a conciliation agreement under which the City
agreed to revise and rescore the exam. However, Thomas and the
City refused to enter into a conciliation agreement, and on
July 3, 1980, the EEOC issued a "right to sue" letter. Thomas
brought this action pro se, and after retaining counsel, she
amended the complaint to add the class claims.

On February 28, 1983, as noted earlier, Judge Flaum
certified the class. On September 18, 1984, we approved a
consent decree which settled the case in part. Under the
decree, the City must hire at least four class members within
the next year. Still unresolved however are the issues of
liability and appropriate relief. On the basis of stipulated
facts, the parties have submitted cross-motions for summary
judgment with well-written supporting memoranda. We turn now
to these motions.

II.

This is not the first challenge to a police department's use
of a physical agility test. Several other courts have ruled
that similar tests violated Title VII.*fn6 In
analyzing the test at issue here, we follow the traditional
approach to disparate impact cases set forth in Griggs v. Duke
Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971),
and its progeny. To establish a prima facie case of
discrimination, "a plaintiff need only show that the facially
neutral standards in question select applicants for hire in a
significantly discriminatory pattern." Dothard v. Rawlinson,
433 U.S. 321, 329, 97 S.Ct. 2720, 2726-27, 53 L.Ed.2d 786
(1977). When a plaintiff makes this threshold showing of
disparate impact, the employer bears the burden of showing that
its discriminatory policy or practice is necessary and
manifestly related to job performance. Id.; Griggs, 401 U.S. at
431-32, 91 S.Ct. at 853-54. If the employer satisfies its
burden, the plaintiff may show that less discriminatory
alternatives would also "serve the employer's legitimate
interest in `efficient and trustworthy workmanship.'" Albemarle
Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45
L.Ed.2d 280 (1975), quoting, McDonnell Douglas Corp. v. Green,
411 U.S. 792, 801, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973);
see Harless v. Duck, 619 F.2d 611, 616 n. 6 (6th Cir. 1980),
cert. denied, 449 U.S. 872, 101 S.Ct. 212, 66 L.Ed.2d 92
(1980).

A.

The undisputed facts plainly show that plaintiffs have made
out a prima facie case of disparate impact. The 1976 test
eliminated about 85% of the women applicants, but only about
10% of the men, from further consideration. The 1979 test,
which lowered the passing score, eliminated about one-fourth
of the women but only about 1% of the men. Indeed, it can
fairly be said that only a woman could have failed the 1979
test. This is clearly a "significantly discriminatory pattern"
of selection.

This disparate impact is apparent from more than the
relative pass rates. As the parties have agreed, the men
received a disproportionate number of higher scores. Because
the final list was drawn up in rank order, the men who passed
fared better as a group than the women who passed. Only one
woman in 1979 ranked in the top 81 scores. About 30% of men
tested scored better than 74, while only about 16% of women
tested did so.*fn7

It is also plain that the test significantly reduced the
ultimate number of women hired. The City hired 34 men from the
1976 lists, and only one woman. Given the disproportionate
number of women who failed the physical agility test, as well
as the disproportionate number of women who received low
passing scores, we find that the physical agility test was in
large part responsible for the ultimate disparate impact in
hiring.*fn8 This is evident both from
the face of the above facts and from an application of the
so-called "80% rule."*fn9

Moreover, the City admitted in its answer, and again in its
stipulated facts, that the physical agility test exerted a
disparate impact on the female applicants. Such an admission,
of course, is binding. The City argues, however, that it has
not admitted that plaintiffs have made out a prima facie case,
and, moreover, it argues that they have not in fact made out
a prima facie case. It asserts first that it only admitted
that the test had a disparate impact on the pool of female
applicants, not on women generally. The 1976 and 1979 female
applicants were not representative of women generally, argues
the City. Essentially, the City contends that they were
clumsier and in poorer shape than women generally.*fn10 We
reject this contention. We note first that the Supreme Court
has rejected a similar argument:

There is no requirement, however, that a
statistical showing of disproportionate impact
must always be based on analysis of the
characteristics of actual applicants. See Griggs v.
Duke Power Co., supra, 401 U.S. at 430, 91 S.Ct. at
853. The applicant process might itself not
adequately reflect the actual potential applicant
pool, since otherwise qualified people might be
discouraged from applying because of a
self-recognized inability to meet the very
standards challenged as being discriminatory. See
International Brotherhood of Teamsters v. United
States, 431 U.S. 324, 365-67, 97 S.Ct. 1843 [52
L.Ed.2d 396].

Dothard v. Rawlinson, 433 U.S. at 330, 97 S.Ct. at 2727. While
Dothard applied to height and weight standards, which might
more easily encourage self-selection than an agility test, we
think that the prospect of competing with men in a rigorous
physical agility test might have discouraged otherwise
qualified women from applying. See Blake v. City of Los
Angeles, 595 F.2d 1367, 1375 (9th Cir. 1979) (applying above
Dothard standard to police force which used both a physical
test and height requirements),
cert. denied, 446 U.S. 928, 100 S.Ct. 1865, 64 L.Ed.2d 281
(1980).

Secondly, the evidence simply does not suggest that the
applicant pool was relatively clumsy. No evidence suggests
that the City's affirmative action program recruited or
attracted klutzes.*fn11 The pattern of disparate impact is
not unique to Evanston, but rather appeared in the total of
results from statewide administrations of the test. Only about
1/3 of women passed the test statewide between 1977 and 1980,
while almost 4/5 of the men passed. Thus, it does not appear
that the plaintiff class's poor showing on the test means that
the women were sub-par.*fn12 In sum, then, plaintiffs have
proved on the basis of undisputed facts that the physical
agility test exerted a disparate impact on them.

B.

Because plaintiffs have conclusively proved their prima
facie case, the City must now bear the burden of proving that
the physical agility test is job-relatd and content valid. The
City must show that "business necessity" justified using the
physical agility test. Griggs, 401 U.S. at 431, 91 S.Ct. at
849; Blake v. City of Los Angeles, 595 F.2d at 1376. In other
words, the City must prove that the test bears "a manifest
relationship to the employment in question," Griggs, 401 U.S.
at 432, 91 S.Ct. at 849, and that the discriminatory test is
"necessary to safe and efficient job performance." Dothard, 433
U.S. at 332 n. 14, 97 S.Ct. at 2728; Liberles v. County of
Cook, 709 F.2d 1122, 1132 (7th Cir. 1983). Specifically, the
City must show that the test is "content valid."*fn13 To be
"content valid" the test must satisfy several attributes.
First, the test-makers must have done a proper "job analysis,"
that is, a study of important work behaviors required for
successful performance and their relative importance. Second,
the test must be related to and representative of the content
of the job. In other words, the test must measure ability to
perform competently on the specific job. Third, the test must
be scored so that it properly discriminates between those who
can and cannot perform the job well. See Guardian Ass'n of New
York City v. Civil Service Comm'n., 630 F.2d 79, 94-95 (2d Cir.
1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d
954 (1981); Harless v. Duck, 619 F.2d 611, 616 (6th Cir. 1980);
United States v. City of Chicago, 573 F.2d 416, 425 (7th Cir.
1978); Berkman v. City of New York, 536 F. Supp. 177, 206-12
(E.D.N.Y. 1982), aff'd, 705 F.2d 584, 585 (2d Cir. 1983). We
believe that the undisputed facts show that the City cannot
meet its burden of proving content validity.

The second stage of the "job analysis" was also not at all
thorough. A series of 13 activities were drawn up following
the above "survey." Then a graduate student went on "ride
alongs" with eight police officers in the suburban village of
Markham. The student rode with officers for about 30 hours,
and based upon his observations, suggested some changes in the
proposed draft of 13 activities. The record is bare of any
other evidence of job analysis, and BOTS has no other
documents showing how it constructed the exam.

The record as a whole falls far short of what is needed to
document a valid job analysis. To be content valid, an exam
must be based on a "thorough task analysis of the job to be
performed." United States v. City of Chicago, 573 F.2d at 425.
The test must "closely approximate tasks to be performed on the
job." Id.; see also Guardians Ass'n., 630 F.2d at 95;
29 C.F.R. § 1607.14(C)(2) (1984).*fn15 The above two-step analysis does
not come close to being a "thorough job analysis."*fn16 This
holding alone means that the City has failed to show, as it
must, that the physical agility test was "necessary to safe and
efficient job performance." Dothard, 433 U.S. at 332 n. 14, 97
S.Ct. at 2728.

2. The Construction of the Test

In light of the above holding, we cannot analyze whether the
content of the test is related to and representative of the
content of the job. Without a thorough job analysis, one
cannot assess whether a test relates to and fairly represents
the job. Thus, we do not address this portion of the content
validity analysis.

Second, the evidence does not, as it must, show that a
passing score of 70 or better validly predicts successful job
performance. As noted earlier, BOTS established its norms by
giving the test to incumbent police officers. It scaled the
test so that 16% of incumbent officers would fail. The score
on each subtest was scaled so that any person scoring within
one standard deviation of the mean would receive a passing
score of "3" for that test. An average score on each subtest
would yield a final score of 70, the passing cutoff. The City
has simply not presented any evidence that this scaling system
validly predicts future job performance. First, no evidence
supports what appears to be pure speculation that 16% of
incumbent police officers would "fail" each subtest. That is,
no evidence supports a conclusion that an applicant who scores
in the lowest 16% of incumbent officers would perform
incompetently. Because the City asserts that a person who
flunks the test would be an incompetent police officer, one
would expect evidence that at least some of the 16% of
incumbents who "flunk" are not in fact performing their jobs
satisfactorily. The City has presented no evidence to that
effect. Indeed, the City's expert (BOTS employee Dr.
Mendelsohn) admits that no empirical evidence supports the
assumption that 16% of incumbent officers cannot capably
perform their jobs; Dr. Mendelsohn chose that figure because
it is "just a standard acceptable, traditional cut-off point
in the psychological research." Mendelsohn Deposition at 24.
Second, and as a corollary to the first point, no evidence
supports a conclusion that a person who fails would be a
poorer officer than one who passes.*fn17

Under the EEOC guidelines, a cutoff score "should normally
be set so as to be reasonable and consistent with normal
expectations of acceptable proficiency within the workforce."
29 C.F.R. § 1607.5(H) (1984); see Guardian, 630 F.2d at 105.
The cutoff need not be precise. That is, the City need not show
that one who scores a 70 would be a good officer and one who
scores a 69 would be a bad one. But some evidence must support
a principled decision that a cutoff figure really predicts job
performance. "When a cutoff score unrelated to job performance
produces disparate . . . results, Title VII is violated.
Consequently, there should generally be some independent basis
for choosing the cutoff." Id. As we have discussed, the cutoff
point of 70 was based on a speculative estimate that 16% of
incumbent officers cannot physically perform on the job. This
unfounded estimate cannot support a valid cutoff line.*fn18

In sum, we conclude that the stipulated facts establish as
a matter of law that plaintiffs have made out a prima facie
case of disparate impact, and that the City cannot document
that the physical agility test was content valid.*fn19 In so
concluding, we would like to emphasize that by this opinion
the Court does not presume to exercise the prerogatives of
police superintendent or to second-guess the police
superintendent's exercise of his professional discretion. It
is well within the police executive's authority to devise a
physical agility test which would be justifiable as a device
to screen police applicants. Certainly the job demands some
minimum level of coordination and strength. However, Title VII
requires that a test that is discriminatory be necessary to
the job and carefully validated. See Harless, 619 F.2d at 616.
Too often tests which on the surface appear objective and
scientific turn out to be based on ingrained stereotypes and
speculative assumptions about what is "necessary" to the job.
Thus, tests which discriminate against protected groups must be
thoroughly documented and validated in order to minimize the
risk of unwarranted discrimination against groups which have
been traditionally frozen out of the work force. While some
physical agility test may properly satisfy Title VII's demands,
the City has fallen far short of what is needed to document and
thereby justify its use of the 1976 and 1979 BOTS physical
agility tests. It is therefore appropriate to enter summary
judgment in favor of the plaintiffs on the issue of liability.

III.

Having determined the liability issue, we turn to the
question of appropriate relief. Plaintiffs seek back pay for
the class and retroactive seniority for those to be hired
under the consent decree. The statute permits, but does not
demand, such relief, as it provides that the court may "order
such affirmative action as may be appropriate, which may
include, but is not limited to, reinstatement or hiring of
employees, with or without back pay . . . or any other
equitable relief as the court deems appropriate." 42 U.S.C. § 2000e-5(g).
While backpay is discretionary, a strong
presumption, "which can seldom be overcome," favors backpay.
Liberles v. County of Cook, 709 F.2d 1122, 1136 (7th Cir.
1983). We may deny backpay relief in this case "only for
reasons which, if applied generally, would not frustrate the
central statutory purpose of eradicating discrimination
throughout the economy and making persons whole for injuries
suffered through past discrimination." Albemarle Paper Co. v.
Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280
(1975). Despite this strong presumption favoring backpay, the
City makes several arguments for reducing the total amount of
backpay awarded.

A.

The City argues that it is entitled to a defense to backpay
because it relied in good faith on an Illinois statute which
required rank-ordering of applicants. The City relies on
LeBeau v. Libbey-Owens Ford Co., 727 F.2d 141 (7th Cir. 1984),
where the Court held that good faith reliance on a state
statute may sometimes justify denial of backpay relief. We
cannot accept the City's good faith defense.

The Illinois statute in question appears to have required
some form of rank-ordering by the police department.
See
Ill.Rev. Stat. ch. 24, § 10-1-12 (1979).*fn20 In addition,
Illinois law mandated some kind of test "of physical
qualifications." Ill.Rev.Stat. ch. 24, § 10-1-7 (1979).*fn21
We note at the outset that these statutes are relevant only to
the City's rank-ordering of applicants. That is, the City's
reliance on these statutes, if any, only extended to its
practice of rank-ordering. The good faith defense does not
extend to those women who failed the exam. The statutes
certainly did not require that the City eliminate applicants
via a physical exam which exerted an unjustified disparate
impact on female applicants.

At present, a genuine issue of fact exists as to whether the
City actually relied on these statutes in deciding to
rank-order. Brooke Koons, the City's former Director of
Personnel, swears in an affidavit that he believed that the
above statutes required rank-ordering based on a physical
agility test. However, Judith Witt, another City employee
involved in the testing process, testified at her deposition
that, although State law required a rank-order list, she did
not believe that State law required that scores on a physical
agility test be used to rank-order applicants. Witt Deposition
at 112. Although there is a dispute about whether the City
subjectively relied on these statutes, we will assume that it
did so rely. Even under this assumption, the City is not
entitled to a good faith defense.

In LeBeau, the Court reaffirmed the rule that the presumption
favoring backpay can be overcome by "special circumstances,"
which include reliance on state laws. 727 F.2d at 149. "Special
factors . . . usually include only circumstances where state
legislation is in conflict with Title VII.'" Id. at 150,
quoting, Stewart v. General Motors Corp., 542 F.2d 445, 451
(7th Cir. 1976), cert. denied, 433 U.S. 919, 97 S.Ct. 2995, 53
L.Ed.2d 1105 (1977). In considering these factors, the district
court is to "balance the merits of the [Title VII] claim and
its support in public policy against the hardship on an
employer acting in good faith." Id.

We believe that "special circumstances" do not exist in this
case because there is no conflict between the state statutes
and Title VII. Even if we assume that the statute required
rank-ordering based on a physical agility test, the statute
does not conflict with Title VII. The statute does not require
that the test exert an unlawful disparate impact on women
applicants. Put another way, the statute cannot be read to
relieve the City of the burden of constructing a test which is
content valid under Title VII principles. The statute may have
demanded a test, and it may have demanded rank-ordering, but
it did not demand that the City shirk its duty of
rank-ordering on the basis of a content-valid test. Thus, even
if the City relied on this statute, it could not have relied
on the statute to fail to use a valid test.

Because the Illinois statutes and Title VII did not conflict
in this case, LeBeau is not controlling. In LeBeau, an Illinois
statute explicitly limited the amount of overtime that women
could perform. This statute on its face conflicted directly
with Title VII, thus placing the employer in that case on the
"horns of a dilemma." 727 F.2d at 147. The Seventh Circuit
affirmed the district court's discretionary decision to
immunize the employer from backpay liability resulting from its
good faith reliance on the state statute. Because there was no
dilemma in this case, as the City was not required to use a
discriminatory test, we
see no reason to depart from the strong presumption favoring
backpay for Title VII violations.

In Kamberos, the Seventh Circuit vacated a district court
award of backpay to the extent it was based on an over
four-year period during which the plaintiff's EEOC charge had
languished in the agency. The Court followed the approach of
the Ninth Circuit in Lynn v. Western Gillette, Inc.,
564 F.2d 1282 (9th Cir. 1977), in which that court held that the
"`complainant should not be permitted to prejudice the employer
by taking advantage of the [EEOC's] slowness in processing
claims . . . particularly where the aggrieved party has
consulted counsel and is aware of this right.'" Kamberos, 603
F.2d at 603, quoting, Lynn, 564 F.2d at 1287. The plaintiff in
Kamberos was herself a lawyer and had retained counsel. "Under
these circumstances," id. at 603, the Court held that the
district court should have reduced the plaintiff's backpay
award.

To determine the class of actual persons discriminated
against, we may estimate the number of women that would have
been hired but for the discriminatory test; mathematical
precision is not necessary. See, e.g., Hameed, 637 F.2d at
520-21; Stewart, 542 F.2d at 452. The City hired 20 males from
the 1976 list. Had the City's selection policy been
non-discriminatory, the percentage of women hired would have
roughly
equaled the percentage who applied.*fn23 See Hameed, 637 F.2d
at 520. The parties agreed that 14.68% of the applicants who
took the physical agility test were women. It also is
undisputed that the 20 males hired from the 1976 list earned
$1,281,058.90 through 1982. Thus, the class members who took
the 1976 test are entitled to ($1,281,058.90) X (.1468), or
$188,059.44.

Moving to the 1979 test, the parties agree that the City
hired 14 men and one woman. Absent discrimination, about
13.25%, of those hired would have been women, since that was
the percentage of female applicants. It is uncontested that
the 14 males hired off the 1979 list earned $759,270.19
through 1982, while the one woman earned $13,470.77. Thus, the
class members who took the 1979 test are entitled to
$759,270.19 X .1325, or $100,603.30, less the $13,470.77
earned by the one woman, or a total of $87,132.53.*fn24

The above calculations should be updated through the date of
the final determination of damages. This figure will then have
to be diminished to account for the actual earnings of class
members during the relevant periods. According to plaintiffs,
more discovery is needed to determine these interim earnings.
One way to make the calculations is to compile figures from
forms submitted by individual class members; once the figures
are compiled, the class-wide award could be diminished on a
class-wide basis.*fn25 See Hameed, 637 F.2d at 521. We will
enter an order referring this case to a Magistrate for a
recommendation to the Court as to the proper amount of
mitigation, as well as to whether prejudgment interest should
be added to the final amount of damages.*fn26 The Magistrate
shall have authority to allow limited discovery for these
purposes and to conduct any necessary hearings. The
Magistrate's report and recommendation, with a proposed final
draft order, shall be submitted within 90 days.

Second, the City makes a related argument that Thomas has no
standing to challenge the rank-ordering because she failed,
and thus was not directly affected by the rank-ordering. The
City relies on General Telephone Co. of Southwest v. Falcon,
457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), in which
the Supreme Court held that class certification was improper
where a named plaintiff was harmed by an employer's promotion
practices, but the class was allegedly harmed by the employer's
hiring practices. Falcon does not render Thomas an improper
class representative. Both she and her class were harmed by the
same discriminatory test, albeit in slightly different ways.
Her interests are consistent with those women who passed, but
who suffered from the rank-ordering process. Indeed, Thomas too
was "ranked," but in a way which eliminated rather than
diminished her chances of being hired. The Falcon court
recognized that class relief is proper where a biased testing
procedure affected class members in slightly different ways.
457 U.S. at 159 n. 15, 102 S.Ct. at 2371. In sum, Thomas meets
Falcon's requirement that her claim "fairly encompass" the
class claims. Id. at 158, 102 S.Ct. at 2370-71. Moreover, Judge
Flaum already considered and rejected the City's arguments in
certifying the class. Memorandum Opinion at 5-8 (Feb. 28,
1983). His holding is the law of the case, and the City has
given us no reason to depart from it.

IV.

We find that the City's use of a physical agility test
violated Title VII. We therefore grant the plaintiffs' motion
for summary judgment and deny the City's cross-motion. The
sub-class which took the 1976 test is entitled to $188,059.44;
those who took the 1979 test are entitled to $87,132.53. Both
figures must be updated to this date and then adjusted to
reflect mitigation earnings. The case will be referred to a
Magistrate, as provided for above. It is so ordered.

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